[Balko] ‘It Opened Our Eyes' | Jackson Free Press | Jackson, MS

[Balko] ‘It Opened Our Eyes'

In November, Wayne County, Mich., Circuit Judge Timothy Kenny threw out the murder conviction of Dwayne Provience for a 2000 drug-related murder in downtown Detroit. After nine-and-a-half years in prison, Provience walked away on a $500 bond. Prosecutors are now deciding whether to retry him. Provience's mother watched from the courtroom as Kenny announced his decision. She was overcome when she realized her son would be free. "It's already Christmas," Vonzella Battle told a local television station. "It's the holidays for me right now."

There was another elated parent in the courtroom that morning as well. Steve Cheolas, 54, made the trip into the city from the suburban town of Harper Woods to watch his son Nick, a third-year law student at the University of Michigan, help win Provience's release as a volunteer for the school's Innocence Clinic. The younger Cheolas handled the clinic's investigation of the police and prosecutors who worked on Provience's case, a critical component to Provience's argument for a new trial. "I've always been proud of Nick," the elder Cheolas says. "But I'm particularly proud of the work he's doing for the Innocence Clinic. To see those family members with joy written all over their faces, well, it just made me feel good."

The two families couldn't be more different. Provience is black and comes from a poor family in downtown Detroit. The Cheolases are white, an upper-middle class family from the suburbs. But a shared experience put the two parents in the courtroom that morning: Both have felt the brunt end of a flawed criminal-justice system. It was after witnessing his own parents' five-year battle with local law enforcement that Nick Cheolas developed an interest in criminal law. That moved him to get involved with the Innocence Clinic after enrolling in law school. And that's how, with his dad looking on, he had the opportunity to help deliver Vonzella Battle's early Christmas present.

"I had always been brought up to be trusting of authority, trusting of the criminal justice system," Nick says. "Anyone who has the sort of experience my family had will never trust it again. And it's one thing for it to happen to my family. These weren't felonies, and we had the resources to fight back. But when you think about the people most in need of police protection, how it can happen to them. When they can't trust law enforcement, the criminal-justice system as a whole fails."

It all began on April 24, 2004, when Steve and Candice Cheolas, 58, threw a surprise birthday party for their 15-year-old daughter. The family says that several of the teens smuggled alcohol into the party without their knowledge. One girl became intoxicated, eventually requiring hospitalization. Her parents called the police.

"The actual encounter with the police that night was about as uneventful as something like that could be," says Nick, who was a college freshman at the time. "Everyone was friendly. It was a couple weeks later, when we started seeing the police reports with obviously false statements in them, that we realized we were going to have problems."

Police charged Steve and Candice Cheolas with controlling a social gathering where minors consumed alcohol, a crime that requires both knowledge and acceptance of the minors' consumption. A second charge for the couple was contributing to the delinquency of a minor. Additionally, police charged Candice Cheolas with obstructing a police officer.

"If you look at the depositions, none of the kids said my parents knew there was drinking going on," Nick says. "They said they snuck alcohol in their pants or were hiding in the bathroom to drink. The police said my parents were drunk and smelled of alcohol. That's just a lie. My parents don't drink in the home, except for maybe a glass of wine with Christmas dinner."

The Cheolases eventually discovered that the police officers who came to their home that night had written two sets of reports, and the two drafts contained major discrepancies. The second drafts included damning information about the Cheolases that was nowhere to be found in the initial reports. They also discovered the officers were wearing microphones on their uniforms that connected to the dash cam on their patrol cars. The audio recordings captured by those microphones would eventually vindicate the family in court.

"The police reports attributed 28 separate statements to my mother that made her seem drunk, belligerent and confrontational. Of those 28, only one benign statement actually shows up in the audio. Everyone lied after the fact—the police, the paramedics, the parents of the girl who got drunk. The tapes show that," Nick says. The police reports also allege that when officers attempted to enter the home, Candice Cheolas repeatedly screamed at them and blocked their access to the doorway—the reason for the obstruction charge. But the audiotapes show she wasn't even outside when the officers entered the home and bear no evidence of screaming. All of which is why the prosecution took the unusual step of trying to prevent the police department's own audiotapes from being admitted into evidence.

Why would police produce false reports when they know the entire incident was recorded? "I really don't know," Nick says. "I guess they figured they're cops, so what the hell is going to happen to them? And you know what? They're right. They've gotten away with it."

Candice Cheolas trail took place in January 2006. The prosecution called 28 witnesses. When the state rested its case, Macomb County District Judge Walter Jakubowski Jr. ordered a directed verdict in favor of the defendant. Candice Cheolas didn't even need to put on a defense.

Directed verdicts are rare, issued only in cases where the state has utterly failed to make its case. But anyone who listened to Judge Jakubowski during the trial might have seen it coming. Jakubowski was openly scornful of the prosecution throughout the trial, at one point stating that he was "infuriated" and "fed up" with the state's tactics. When the city prosecutor tried to recall a police officer to the witness stand to clarify after he'd been shown to have given false testimony, Jakubowski sarcastically asked if the state planned to have the officer go home "to polish his testimony" first. He once asked the prosecutor if his aim was to "crucify" Candice Cheolas. At another point he bluntly asked the city attorney: "There's prosecution, and there's persecution. Which are we doing here?"

Candice Cheolas' victory in criminal court gave the family some vindication, but they still chafe at the lack of accountability. "No one involved in all of this has ever been sanctioned or punished in any way," Nick says. Steve adds: "They could do it again if they wanted. And they'd get away with it again."

The Cheolases estimate that the ordeal has cost them just under a million dollars. In October, a federal district court judge threw out their civil-rights lawsuit against the city, the police and the prosecutors. They plan to appeal. The city, meanwhile, has since filed a motion asking the court to force the family to pay the city's legal expenses.

Nick Cheolas sees parallels between his family's case and Provience's. "In both cases you have police and prosecutors making major mistakes, and not by accident. People messed up, and they messed up on purpose. In Dwayne's case, they not only had evidence that he was innocent, the same prosecutor's office argued in a separate case that two other men committed the same murder. They never told Dwayne's attorneys."

But Nick's father emphasizes that the similarities end there. "What we went through pales in comparison," Steve says, referring to Provience's nine years in prison. "I'm just saying it opened our eyes. I was always of the mindset that it was OK for the police to do a little wrong in relation to very bad people. And I think that's a pretty common thought. I now fully understand how even little wrongs are simply wrong, even when they're done to bad people. Once you start there, where do you stop?"

Steve says though his friends in Harper Woods believe his family was railroaded, many of them still retain his own old mindset when it comes to how police and prosecutors deal with less savory people—people like Dwayne Provience, who after all had a couple of drug convictions on his record at the time he was charged with murder. "I try to tell them, it's the other way around. If it can happen to us, can you imagine how easy it is for them to do it to people who have already made mistakes or who don't have the resources to defend themselves?"

His son certainly can.

Radley Balko is senior editor of Reason magazine where this column originally appeared. The JFP Daily features his column every Tuesday.


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